Black Economic Empowerment Blog

South African Constitution

July 25, 2017

They say that those in power eventually revert to the ways of their former opponents or oppressors. It was Pete Townsend who carved those immortal lines "meet the new boss, just like the old boss" into rock history in 1971. This is an application of "the more things change, the more they stay the same". bolshie (sad commie) bob has published a document for comment. The document has a number of lofty ideals that include To specify Standards for Accreditation for a Rating Agency and To set Standards that will govern the B-BBEE Verification Industry. It prescribes certain minimums of levels of skill and competence for practitioners - which will automatically exclude many in the industry (specifically that person who shoots his mouth off about things that he truly has no competence to speak of). That's honourable and I see where bobby brown is headed there. However he has taken a giant step backwards when it comes to who can play in the verification industry (this possibly might include consultants). A leap so far back that it spans a distance of at least 106 years.

Our learned red man has proposed the following (page 15)

The rating agency in terms of this Statement must meet the following criteria:

8.7.1 To comply with the relevant Verification Methodologies as amended8.7.2 To be verified as a Superior Contributor to B -BBEE Level One 1 to Three 3 Contributor with at least 51 % Black Ownership utilizing the Flow Through Principle as per the Amended Codes of Good Practice within 12 Months of the final publication of Statement 005.8.7.4 The B-BBEE Verification Professional Regulator will assess and analyse the B -BBEE Verification Certificate and Report of the Rating agency inclusive of all supporting documentation and evidence.8.7.5 A Rating Agency needs to be verified against all 5 elements of the scorecard regardless of their size (EME, QSE or Generic - and start-ups)

And if you don't meet 8.7.2

8.7.3 If the above is not adhered to Accreditation is automatically lost.

What the minister is proposing is that certain jobs that operate in the private sector are reserved for a certain class of company. In other words if you aren't 51% black owned as a minimum then you need not apply. Simply put this is apartheid endorsed job reservation (here is an old Black Sash document on job reservation written in 1963) and it starts with a small industry like BEE verification and then extends to other industries. What's stopping them from telling IRBA that all auditing firms may only be registered with them if they are 51% black owned. Can they prevent other professions from belonging to critical societies or organisations because they don't meet an apartheid style criterion? Will they start allocating licences to operate based on racial grounds? They can and they will.

We've tried to stop this flagrant disregard for the constitution and the rule of law before, to no avail. The mining industry stood up to zwane because he threatened the security of the industry. And they will continue to do so. davies is not in the same league of denseness as zwane but his systematic destruction of the economy through his badly thought out policies has gone unchecked, and for far too long.

You've got less than 60 days to submit your comments. It's your livelihoods that are at stake here - do something about it.

Interested parties are requested to forward their comments in writing for the attention of the B-BBEE Unit to either of the following addresses:1. Email - statement005@thedti.gov.za2. the dti Campus77 Meint ies street, Sunnyside Pretoria, 0002c/o BEE Unit3. Private. Bag X 84, Pretoria, 0002Enquiries: 012 394 3518.

January 16, 2015

there is now a firmly established judicial precedent that frowns upon the use of rigid racial or gender quotas to achieve affirmative action goals. While the constitution acknowledges the need for policies to address the legacy of apartheid, to be legal such discrimination on the basis of race must be "fair", which implies that attempts to reverse the effects of centuries of racism cannot be imposed without due regard for their effect on the incumbents.

This is a lesson the government should have learned by now — SA is a rights-based democracy, which means the executive does not have carte blanche. However good its intentions, like everybody else the government is bound by the law.

October 15, 2014

CLASSIFYING people in accordance with their race is "legally impossible", says trade union Solidarity in court papers challenging the constitutionality of an affirmative action policy.

The aim of the policy is to address the fact that the lucrative liquidation industry still remains largely a white, male enclave. But the implication of Solidarity’s argument is that all affirmative action policies would be unlawful — unless there is a system to determine how to categorise people in terms of race.

The argument is likely to raise eyebrows because the constitution specifically approves of "measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination" — including race-based measures, according to the Constitutional Court.

This is a very important case. The two underlined sentences capture the nub of the issue. Section 9(2) of the Constitution contains the second sentence. This is the section that the government uses as a blanket to cover all of its dodgy measures like the revised codes. I think that what Solidarity is questioning is whether the Constitution allows for racial classification. I don't think it does, if you cannot break people down into race groups then you can't have any EAP.

In heads, Solidarity’s counsel Greta Engelbrecht said that even the architects of the apartheid-era race classification system struggled to establish "with precision" the race of some people, adopting "ridiculous tests".

Ms Engelbrecht quoted University of Cape Town sociologist Deborah Posel at length, in describing some of the absurd methods used to classify people during apartheid days — including the infamous "pencil test", the "feel of an earlobe" and examining the "patch of skin on the inside of an arm".

"One official insisted he could tell a coloured with absolute certainty by the way he spits," quoted Ms Engelbrecht.

Though the hated Population Registration Act was repealed, Ms Engelbrecht argued the postapartheid government was still "seeking to arrange society" as four distinct races. "How in a postapartheid era we are to determine who is ‘African’, ‘coloured’, ‘white’ and ‘Indian’, is not explained," said Ms Engelbrecht.

I do understand that we need to do something about the African majority, but the government is not going about it in any legal way. And the worst thing is that we are sitting here and tolerating this flagrant violation of Constitutional rights. Just like frogs in luke warm water that is heating up very quickly.

July 18, 2014

The Army Gymnasium in Heidelberg was graced with two special people in 1986, MC Snyman and an Adrian Molalike known as Fourie. MC Snyman is an institution but little is known about Fourie so I'll talk about him. Fourie was an avid fan of Eugene Terreblanche and the AWB. The wonderful contradiction was that he was a short little guy, with a fair complexion and glasses, the antithesis of Terreblanche. But he had views which ranged from Holocaust denial to dramatic racial segregation. One morning we were in a classroom, there must have been about 25 of us (white males) and Fourie. I seem to recall that all of us could not understand nor agree with Fourie's views and I think we were in the process of persuading him that his views were deluded. Just when we thought we were convincing him that he was wrong, he retorted with " 'n……………….. is mos 'n……………….." Fourie was not to be persuaded.

Last night I was on Classic Business. Hosted by Michael Avery, the panel included me, Sam Gumede – Partner, Mergers and Acquisitions, Black Economic Empowerment at Webber Wentzel and Takalani Tambani, BEE Director at the DTI. This was always going to be a problematic conversation, I cannot hide my contempt for the revised codes. I also harbour a fair amount of animosity toward the dti as well for publishing the codes and then not bothering to explain the garbage that they have gazetted. One of the issues that I raised with Takalani was that of Constitutionality. Once again Tak threw section 9(2) back at me, saying that it was perfectly Constitutional. He couldn't explain why the codes are in breach of the BEE Strategy – specifically the inclusivity principle contained in paragraph 3.4.2. His stock response was that it was Constitutional.

And herein lies the ultimate problem with the state of legislating in South Africa. Many pieces of legislation or supporting legislation are most certainly unconstitutional. The government take the stance that it is constitutional and that is that. Not too dissimilar to Fourie. What they really are saying is that they will legislate in any arbitrary way and if you don't like it then take them to court. They also know that few people or interested parties will challenge the legislation in the Constitutional Court and they'll get away with it.

It's not too much to ask that the government test their laws against the constitution before they foisted them on us. Section 9(2) gives the government a free reign to do whatever they like. This freedom has to be curtailed.